Commonwealth of Kentucky v. Nabryan Marshall

---- RENDERED: AUGUST 26, 2010
TO BE PUBLISHED
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COMMONWEALTH OF KENTUCKY
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2007-CA-002518-MR
FAYETTE CIRCUIT COURT NO . 07-CR-00242
NABRYAN MARSHALL APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
After entering a conditional guilty plea, Appellee, Nabryan Marshall, was
convicted of trafficking in a controlled substance and bail jumping in Fayette
Circuit Court on October 15, 2007. Appellee's plea bargain reserved his right
to appeal the trial court's order overruling his earlier motion to suppress
evidence that he alleges was collected in violation of the Fourth Amendment of
the United States Constitution and Section Ten of the Kentucky Constitution .
On direct appeal, Appellee successfully argued that the search was
unconstitutional, and the Kentucky Court of Appeals reversed the trial court's
order. The Commonwealth, Appellant, then petitioned this Court for
discretionary review, asking us to reverse the Court of Appeals' determination
that (1) a search more invasive than a Terry frisk was not constitutionally
permitted, and (2) the strip search in this case was conducted unreasonably .
We granted, that petition, and now reverse the Court of Appeals on both issues .
I. Background
On January 2, 2007, Appellee was spotted by Officer Schwartz of the
Lexington Metro Police Department . After securing backup, Schwartz decided
to engage him, being under the impression that Appellee had an outstanding
warrant. As explained below, the officer eventually made contact with Appellee
in a nearby apartment unit, where, on location, he conducted a strip search of
Appellee's groin area. That strip search is the seminal event to this appeal .
Due to the factually intensive nature of our analysis below, we reserve further
recitation of the relevant facts at this juncture .
II. Analysis
A. Terry Frisk and Subsequent Search
We first address the Commonwealth's contention that the Court of
Appeals erred by concluding that a search more invasive than a Terry frisk was
not merited in this case .
Both the Fourth Amendment to the United States Constitution and
Section Ten of the Kentucky Constitution guarantee "[t]he right of the people to
be secure in their person, house, papers and effects, against unreasonable
searches and seizures ." Ordinarily, under both Constitutions, a search or
seizure may not be had by the government unless a detached magistrate finds
probable cause and issues a warrant. Helton v. Commonwealth, 299 S.W.3d
555, 560-61 (Ky . 2009) . Obtaining that warrant makes the search or seizure
constitutionally permissible, absent other defects .
Yet, there are limited exceptions where the government is not required to
seek the permission of a detached magistrate before searching or seizing a
person. In particular, an officer may arrest an individual without a warrant
where he has probable cause to believe that the person has committed a felony.
KRS 431 .005(1)(c) .l Additionally, where an arrest warrant has been issued for
a suspect, that warrant will provide the arresting officer with all the valid
probable cause needed to arrest that individual-and the officer will need
nothing more. KRS 431 .005(1)(a) .
Searches are governed in nearly the same fashion as seizures. But, like
the rule governing seizures, there are also exceptions, one being a search
incident to arrest. United States v. Robinson, 414 U.S . 218 (1973) ; Gustafson
v. Florida, 414 U.S. 260 (1973) . Under this exception, an officer may make a
warrantless search of an arrested individual, the justification being the need to
disarm the suspect and, equally important, the need to preserve evidence for
later use at trial . Robinson, 414 U.S . at 234 (citing Agnello v. United States,
269 U.S. 20 (1925) ; Abel v. United States, 362 U.S. 217 (1960)) .
And, there are circumstances when an officer may make a limited seizure
and a limited search without either a warrant or probable cause. In Terry v.
Ohio, the United States Supreme Court carved out this exception to the
1 An officer may also arrest an individual for a misdemeanor where that
misdemeanor is committed in the officer's presence . KRS 431 .005(1)(d) .
probable cause requirement, permitting brief investigatory stops in
circumstances where police officers have a reasonable suspicion that "criminal
activity may be afoot." 392 U .S . 1, 30 (1968) . So long as the officer can
articulate facts giving rise to his suspicion of criminal activity, and where his
suspicions are reasonable under the circumstances, a brief stop of a suspect is
constitutionally condoned . Id. Moreover, once the officer makes a lawful Terry
stop, she may then "frisk" that individual where she is of a reasonable belief
that the suspect is armed and presently dangerous . Ybarra v. Illinois, 444 U.S.
85, 92-93 (1979) (citing Adams v. Williams, 407 U .S . 143, 146 (1972)) ; Terry,
392 U .S. at 21-24 . During these Terry frisks, an officer may seize any
contraband he finds, so long as the illegal nature of the contraband is
immediately apparent to the plain feel of his hand. Minnesota v. Dickerson, 508
U .S. 366, 375 (1993) .
These brief Terry frisks often mature into full-blown probable-cause-
based searches, particularly when an officer, while conducting a pat down,
becomes immediately aware of contraband, and does so without manipulation
of the object felt, but with the simple plain feeling of his hand. Dickerson, 508
U.S . at 376 . In other words, under the "plain feel" doctrine the object must be
immediately identifiable as a weapon or contraband by a simple "pat down"
before it may be legally seized. Id. Once recognized as a weapon or contraband,
an officer may perform a more invasive search such as entering the pockets of
the suspect or even placing his hands down a suspect's pants, wherever the
immediately apparent contraband may be . See Murrell v. Commonwealth, No.
2003-CA-000436-MR, 2004 WL 1175782 (Ky. App . May 28, 2004) (it is
constitutional for a police officer to place his hands inside an arrestee's pants
and underwear to retrieve what he knows, upon plain feel and without
manipulation, to be contraband) . Moreover, once an illegal substance is
identified on the suspect, the reasonable suspicion required to detain the
suspect ripens into probable cause and an arrest may be made meriting an
even further probable-cause-based search of other areas. United States v.
Scroggins, 599 F.3d 433, 441 (5th Cir. 2010) .
However, when a defendant alleges that the government collected
evidence from his person in a fashion violative of the above-discussed rules, a
suppression hearing is warranted . RCr 9 .78 . At this hearing, a court must
consider whether the warrantless search was conducted in a manner that does
not trample the Fourth Amendment . Normally, that inquiry questions the
existence of probable cause or reasonable suspicion, whatever the situation
necessitates . And where the court determines that an officer conducted the
search or seizure without the appropriate level of reasonable suspicion or
probable cause, suppression of the discovered, incriminating evidence will be
commanded. United States v. Calandra, 414 U .S . 338 (1974) ; See also Young v.
Commonwealth, 313 S .W.2d 580 (1958) .
When required, an appellate court in this Commonwealth will review a
trial court's suppression decision pursuant to RCr 9 .78, which provides in part
that, "[i]f supported by substantial evidence the factual findings of the trial
court shall be conclusive." If upon. review of the factual findings under a
clearly erroneous standard, we conclude that the trial court's findings are
supported by substantial evidence, we then undertake a de novo review of that
court's application of the law to those facts . Commonwealth v. Pride, 302
S.W .3d 43, 49 (Ky. 2010) .
With these guiding principles in mind, we turn to the case at bar, and
judge the correctness of the Court of Appeals' determination that the search in
this case exceeded that which is permitted by Dickerson, supra, and, further,
its determination that any exploration beyond a Terry frisk was improper .
The Commonwealth asserts that the Court of Appeals erred when it
determined that Officer Schwartz exceeded his authority to search Appellee's
groin area and posits that the Court of Appeals did not provide the appropriate
deference to the trial court's determination that the officer was immediately
aware of the contraband in Appellee's underwear.
Appellee responds by arguing that a search beyond a Terry frisk was not
constitutionally permissible and was illegal under the facts in this case . As a
result, Appellee contends that the Court of Appeals was correct in reversing the
trial court's contrary determination .
Having considered the circumstances of the search, the trial court's
findings, and the parties' arguments, we hold that a search more invasive than
a Terry frisk was appropriate in this case and therefore reverse the Court of
Appeals' determination that the search exceeded constitutional limits .
Here, Schwartz testified that: (1.) after spotting Appellee in an area
known for criminal activity ; (2) being informed that Appellee was actively selling
narcotics ; (3) knowing from prior contact that Appellee was usually armed; and
(4) because of his knowledge that there was an "unconfirmed warrant" for
Appellee's arrest, he decided to wait for backup and then "make contact" with
Appellee'2 By the time backup arrived, Schwartz had lost sight of Appellee, so
the officers then began to search the area .
During their search, the officers encountered a frantic witness who
informed them that Appellee was involved in a fracas inside a nearby
apartment unit. As the officers approached the complex, Schwartz witnessed
two women climbing out of the back window of the suspect apartment unit.
The women stated that there was an altercation going on in the apartment and
that they wanted to escape the situation . Schwartz and the other officers then
proceeded to enter the apartment and could hear the confrontation upon
arrival . As they proceeded through the apartment, Schwartz testified that he
spotted Appellee toward the back of one of the rooms with his back-side
partially turned toward Schwartz and with both hands down the front portion
of his pants. All the while, another individual was yelling from inside the
2 The trial court directly questioned Schwartz about the definition of an
"unconfirmed warrant." He testified that an "unconfirmed warrant" is a warrant
that the officer is aware of, but is unsure of whether it has been served or is still
outstanding. He testified that a warrant is only confirmed by either the district
court or the sheriff's office.
apartment "It's in his crotch-it's in his crotch!" Schwartz, fearing that he had
just witnessed Appellee conceal a weapon in his groin area, placed Appellee in
hand cuffs and performed a Terry frisk.
On direct examination, Schwartz testified that while performing the Terry
frisk he felt a hard, rock-like substance in Appellee's groin area, and, based on
his five years' experience as a police officer, determined it "to be possibly crack
cocaine ." (emphasis added) . In contrast, on cross-examination, Schwartz
testified that upon feeling the golf ball sized object he "knew it to be crack
cocaine based on all [his] experience with it." (emphasis added) . After hearing
Schwartz's testimony, the trial court found that the officer immediately knew
the item was contraband upon contact, that Schwartz did not manipulate the
object when making his determination, or that that there was insufficient
evidence to show that the officer could have mistaken the object for a part of
Appellee's anatomy. The court denied the motion to suppress .
The Court of Appeals reversed the trial court's order, concentrating on
the officer's testimony that the object could "possibly" be crack cocaine . The
Court of Appeals, also influenced by the fact that Schwartz had determined the
absence of a weapon on Appellee when he decided to do a more invasive
search, found that the object felt could have been numerous items other than
contraband. Relying in part on our opinion in Commonwealth v. Jones, 217
S .W.3d 190 (Ky. 2006), the Court of Appeals determined that further
exploration beyond a Terry pat down was improper . We disagree and therefore
reverse the Court of Appeals and reinstate the trial court's order denying
Appellee's motion to suppress .
Because the parties do not contest whether there existed reasonable
suspicion to stop or frisk Appellee in this case, we begin our analysis with the
determination of whether a search more invasive than a Terry frisk (a strip
search) was permissible .
Strip searches are not always appropriate and as noted above, even when
"a person is validly arrested [or validly arrestable, that] does not mean that he
is subject to any and all searches that the arresting officer may wish to
conduct." United States v. Mills, 472 F.2d 1231, 1234 (D.C . Cir . 1972) (en
This
banc) . 3 rule is specifically applicable to strip searches, as they are
extremely invasive and in fact will sometimes be totally improper, repugnant,
and illegal. See Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th
Cir.1985) (strip searches conducted without reasonable suspicion that minor
offenders had possession of contraband are unreasonable and violate the
Fourth Amendment) ; Taylor v. Commonwealth, 507 S .E .2d 661, 663 (Va. App.
1998); see also Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th
Cir .1983) (strip searches prohibited where minor offenders are not inherently
dangerous, are not being committed to a jail population but are merely being
briefly detained, and officers have no reason to believe they are hiding weapons
or contraband) . Searches may not be conducted on the "mere chance that
3 Whether Appellee was arrested at the time this search was conducted is irrelevant.
See footnote 9, infra.
desired evidence might be obtained ." Schmerber v. California, 384 U .S. 757,
769-70 (1966)) ; see also LaFave 8v Israel, Criminal Procedure § 3 .5(c), at 177 (2d
ed . 1992) (routine strip searches cannot be "employed against all classes of
arrestees") . But there are situations where strip searches are necessary and
particularly so where the officer has probable cause to specifically search such
a private area to preserve or prevent the destruction of evidence or to discover a
concealed weapon. Such were the facts surrounding our holding in Williams v.
Commonwealth, a decision based on events resembling those here. 147 S .W.3d
1 (Ky. 2004) .
In Williams, the police conducted a strip search of the defendant on
location in an apartment bathroom . Id. There, we addressed whether the strip
search conducted was supported by probable cause. Id. In answering the
question in the affirmative, we found that because the officers had reliable
information that the defendant had hidden the contraband between his
buttocks, and because the officers were reasonable in believing that the
arrestee placed the evidence at risk of being lost, the search was supported by
probable cause . Id. at 8 .
Here, the officer had more knowledge than what the officers had known
in Williams . Schwartz was told that Appellee was actively selling drugs and
knew from his prior experience 4 that Appellee tended to carry a weapon . With
this knowledge, and during his investigation of a fracas that produced three
4 Schwartz had arrested Appellee on other occasions and testified that he had "quite
a bit of prior contact" with him.
fleeing witnesses (two from a rear window of the same unit housing Appellee)
Schwartz faced what one would reasonably believe to be a dangerous situation
and suspect. What is more, during this investigation, Schwartz witnessed
Appellee place both hands down the front of his trousers while another
occupant of the apartment unit was yelling, "it's in his crotch!"
With this knowledge and while in a precarious environment, Schwartz
placed Appellee in handcuffs and conducted a Terry frisk, later testifying that
the frisk revealed a hard, rock-like substance he knew to be crack cocaine-5 It
was then that Schwartz decided to conduct a search more invasive than a Terry
frisk. In a bedroom with the door partially opened, Schwartz and another
officer faced the Appellee toward the wall and pulled down his pants and
underwear. The officers then peered between Appellee's thighs, viewing
Appellee's body from his back side . There, the two officers saw a plastic bag
containing a white substance dangling from the front of Appellee's scrotum .
Schwartz had probable cause to conduct a search more invasive than a
Terry frisk in this case because he knew what he felt was crack cocaine . By
placing the crack cocaine in a location that makes the contraband immediately
apparent to the plain feel of an officer's open hand, Appellee essentially
5 We note that if taken alone and in a vacuum, the officer's testimony that he
believed the rock-like substance "to be possibly crack cocaine" might have
warranted suppression . However, Schwartz clarified his position when cross
examined and unequivocally stated that when he felt the hard object secreted in
Appellee's groin area, he knew it to be cocaine . Where there is a discrepancy in
testimony, it is the trial court that should make the determination as to which
portion of the inconsistent testimony to believe and that decision will not be
disturbed on appeal absent a lack of substantial evidence to support that finding.
Pride, 302 S .W.3d at 49 .
positioned the contraband in what can be analogized as in "plain view" of the
officers .6 We find this search directly supported by Dickerson and Williams,
supra and hold that that the reasonable search of an individual should not be
held unconstitutional simply because the suspect chooses to hide contraband
in a potentially embarrassing location and does so in a manner that makes the
contraband immediately apparent to the plain feel of an officer's open hand .
In as much as the Court of Appeals was influenced by the handcuffing
of Appellee and thus considered his inability to make contact with the
contraband, we find such a consideration unnecessary. Upon immediately
6 In Dickerson, the United States Supreme Court analogized the plain-view doctrine
to searches where an officer becomes immediately aware of contraband by the pl ain
feel of his hand. There, Justice White explained :
We think that [the plain-view doctrine] has an obvious application
by analogy to cases in which an officer discovers contraband
through the sense of touch during an otherwise lawful search . The
rationale of the plain-view doctrine is that if contraband is left in
open view and is observed by a police officer from a lawful vantage
point, there has been no invasion of a legitimate expectation of
privacy and thus no "search" within the meaning of the Fourth
Amendment-or at least no search independent of the initial
intrusion that gave the officers their vantage point . [citations
omitted] . The warrantless seizure of contraband that presents
itself in this manner is deemed justified by the realization that
resort to a neutral magistrate under such circumstances would
often be impracticable and would do little to promote the
objectives of the Fourth Amendment . [citations omitted] . The same
can be said of tactile discoveries of contraband. If a police officer
lawfully pats down a suspect's outer clothing and feels an object ,
whose contour or mass makes its identity immediately apparent,
there has been no invasion of the suspect's privacy beyond that
already authorized by the officer's search for weapons ; if the object
is contraband, its warrantless seizure would be justified by the
same practical considerations that inhere in the plain-view
context .
508 U.S. at 375-76 .
identifying the contraband as crack cocaine, Schwartz's reasonable suspicion
ripened into probable cause and he had the authority to arrest Appellee for any
number of charges stemming from the possession of the crack cocaine, most of
which are felonies . Based upon this probable cause alone, Schwartz was
entitled to conduct a probable-cause-based search incident to arrest .? And
when an officer has probable cause to conduct a warrantless arrest and search,
we do not require the officer to make a determination regarding the probability
of the arrestee's ability to destroy evidence on his person when performing a
search incident to that arrest . Collins v. Commonwealth, 574 S .W .2d 296 (Ky.
1978) (citations omitted) . We hold that as long as the arrestee is searched
incident to an arrest, officers may retrieve any evidence or weapon on his
person whether or not within his reach.$ A contrary conclusion would lead to
an unsound result as it would prohibit officers from removing evidence that
7 Notwithstanding the Court of Appeals' concern with the timing of the search and
the arrest we find the question of whether Appellee was under arrest at the time the
search was conducted irrelevant. We need not make that determination to decide
whether a probable-cause-based search was appropriate . In Rawlings v. Kentucky,
the United States Supreme Court affirmed our judgment and ruled that "it is not
particularly important that the search preceded the arrest" when the police had
probable cause to arrest the defendant before the search and "the formal arrest
followed quickly on the heels of the challenged search ." 448 U.S. 98, 111 (1980) .
Here, the probable cause to arrest the defendant was supplied by the officer's
realization that he harbored drugs on his person . Furthermore, the arrest
immediately followed the search and thus we find Rawlings directly on point.
8 We note that suspects harboring drugs on their person often attempt to discard
them in the back of police cruisers after they have been arrested . See Spears v.
Commonwealth, 78 S .W.3d 755 (Ky. App . 2002) ; Prescott v. Commonwealth, No.
2006-CA-000383-MR, 2007 WL 706848 (Ky. App. March 9, 2007) ; Mitchell v.
Commonwealth, No. 2008-CA-000808-MR, 2004 WL 2150284 (Ky. App. Sept. 24,
2004) .
they know to be on an arrestee's person simply because the arrestee cannot
access the evidence due to his being in handcuffs or otherwise restrained .
And because the preservation of evidence is as equally important as officer
safety, such a rule would further lead to the absurd conclusion that an officer
cannot remove a weapon if that arrestee is restrained and unable to access the
weapon on his person. We repeat that neither the Constitution of Kentucky
nor the Constitution of the United States requires an officer to weigh an
arrestee's probability of success of obtaining a weapon or destructible evidence
before searching a suspect incident to an arrest. Id. at 297 (citations omitted) .
B. Reasonableness of the Search
Having concluded that a search more invasive than a Terry frisk was
indeed supported by probable cause, we now turn to the Court of Appeals'
determination that the strip search conducted in this case so exceeded the
bounds of propriety and reasonableness as to be unconstitutional.
The Commonwealth argues that the Court of Appeals should be reversed
because the manner in which the strip search was conducted was reasonable
under the circumstances . Specifically, the Commonwealth argues that because
Appellee was not exposed to any undignified, humiliating, or terrifying touching
or trauma, the search was conducted within constitutional bounds .
Appellee counters that the search was unreasonable because the
contraband was not immediately apparent after a Terry pat down and thus the
officers exceeded their authority by pulling down his pants and underwear.
Ultimately, Appellee asks this Court to recognize that because a strip search,
regardless how professionally and courteously conducted, is an embarrassing
and humiliating experience, the search should have taken place at the police
station and not in the apartment where Appellee was arrested . Moreover,
Appellee argues that by conducting the search in a room with an open door, he
was exposed to the apartment's other occupants, and thus subjected to an
unconstitutional search .
There exists no brightline rule to determine how invasive a search may
be when conducted without a search warrant, but we again recognize that
simply because "a person is validly arrested does not mean that he is subject to
any and all searches that the arresting officer may wish to conduct." Mills, 472
F .2d at 1234 . Different circumstances will give rise to different searches and
seizures, some searches and seizures being reasonable in one circumstance
and not in others ; but reasonableness under the circumstances is the
cornerstone . Thus, a search may be supported by probable cause, but may be
conducted in a manner making it so unreasonable as to require a finding of
unconstitutionality . See Schmerber, 384 U.S . 757 (where the United States
Supreme Court first analyzed whether the search was supported by probable
cause and then determined whether the search (a blood test) was conducted in
a reasonable manner) ; see also Campbell v. Miller, 499 F.3d 711, 718 (7th Cir.
2007) (holding that strip search incident to arrest was not per se unreasonable
but holding that search was performed in an unreasonable manner when
conducted in view of the public) . In any event, we recognize that "[s]trip
searches of detainees are constitutionally constrained by due process
requirements of reasonableness under the circumstances." Logan v. Shealy,
660 F.2d 1007, 1013 (4th Cir.1981), cent. denied, 455 U .S. 942, (1982) ; Taylor,
507 S.E.2d at 663.
1 . Bell Factors
To make the determination of reasonableness, we consider the factors
recommended by the United States Supreme Court in the case of Bell v.
Wolfish, using them to balance the need for. the particular search versus the
personal rights that the search entails. 441 U .S . 520, 559 (1979) . These
factors include: (1) the scope of the particular intrusion; (2) the manner in
which the search is conducted; (3) the justification for initiating the search ;
and (4) the place in which it is conducted . Id.
After considering these factors and the specific circumstances
surrounding this search, we conclude that the search was conducted in a
reasonable manner.
a. The Scope of the Particular Intrusion
The scope of the search in this case was broad. It involved the exposure
of Appellee's buttocks and genital area and we agree that "regardless of how
professionally, and courteously conducted, it is an embarrassing and
humiliating experience by definition ." Hunter v. Auger, 672 F .2d 668, 674 (8th
Cir . 1982) . Outside of a physical examination, chemical examination, or cavity
search, this type of search is the most invasive performed . Thus, we find that a
more intensive analysis is necessary when searches of this nature are
conducted, especially when done in the field . That is not to say, however, that
these searches are per se prohibited-no court in this Commonwealth has ever
made such a declaration, and we decline to do so today. But we do note that
officers should be cautious when performing these types of searches, outside of
a sanitary and secure police station . And while this case provides facts
sufficient to support the reasonableness of the search conducted, that will not
always be the case . Indeed, the police risk the loss of evidence when they
subject arrestees to strip searches outside of the police station, and even
sometimes when the search is conducted in the station house. See Stewart,
767 F.2d at 156-57 (holding strip searches conducted in the station house
without reasonable suspicion that minor offenders had possession of
contraband are unreasonable and violate the Fourth Amendment) .
Here, as stated above, the officers faced a dangerous situation. With the
knowledge that Appellee sometimes carried weapons and that an altercation
was taking place, the officers proceeded through the confines of an apartment
to investigate. Upon witnessing Appellee place something in his pubic area,
and determining it to be contraband after performing a Terry frisk, the officer
decided to visually search the external parts of Appellee's groin and buttocks.
The officers did not probe into Appellee's body cavity and neither did they
manipulate any part of his anatomy. The scope of this search was confined to
visually inspecting what the officer immediately knew to be contraband .
Thus, after fully weighing the facts surrounding this search, we conclude
that its broad nature was necessary and was constitutionally in bounds .
b. The Manner in Which the Search is Conducted
We find that the manner of the search and the appropriateness thereof
should be controlled and determined by certain factors considered in
Schmerber, 384 U.S . 757. There, the Court, after determining that probable
cause supported the search, considered whether the search was reasonable
and : (1) analyzed the type of search and its commonality (there, a blood test
routinely used) ; (2) considered who performed the search (there, medical
personnel) ; (3) weighed risk, pain and trauma to the arrestee (there, all of
which were minimal) ; and (4) considered the skills required to conduct the
search (there, medical practices controlled) . Id. at 769 . We thus consider these
factors in the case at bar to determine whether the manner of the search
conducted on Appellee was appropriate.
i. Type of Search Performed, its Commonality, and by Whom
We first consider two of Schmerber's considerations in conglomeration-
the type of search performed, its commonality and by whom-and conclude
that they support a finding that the manner of this search was appropriate .
Here, trained officers conducted a search that is commonly performed on
arrested individuals who officers already know hide drugs on their person.
Strip searches, especially of individuals who have hidden contraband in the
manner Appellee did, are necessary to preserve evidence, to prevent infiltration
of contraband into detainment centers and, sometimes, for officer's safety.
Thus, we find them appropriate in some cases, particularly so here because the
officer became immediately aware upon the plain feel of his hand that Appellee
harbored drugs in a peculiar location on his person.
ii. Existence of Risk, Pain, or Trauma
We next consider the existence of risk, pain, or trauma. We first note
that physical pain should not be the end of a court's inquiry, but rather mental
pain should be considered as well . Here, while we find an absence of physical
pain due to the search being visual in nature, we recognize that the search was
probably a embarrassment to Appellee and thus consider his mental pain and
its traumatic effects .
We reiterate that a strip search is one of the most invasive and traumatic
searches conducted. However, the fact that Appellee was turned, facing away
from the "open door" and that no one other than the two officers were in the
line of sight leads to the conclusion that the embarrassment was minimized to
some degree.9 Again, we repeat that simply because an individual chooses to
hide contraband in an intimate location and does so making it immediately
apparent to police, he may not then complain that the officers searched his
person in an inappropriate manner absent other aggravating circumstances.
9 Had the officers simply closed the door completely, we would have been less
concerned with the embarrassing nature of this search.
Our consideration of trauma and mental pain is also affected by the fact
that the officers did not come into physical contact with Appellee's genitals or
buttocks . As noted by the Court of Appeals, even after seeing the drugs
dangling from Appellee's genital area, the officers demonstrated restraint and
common decency by removing the contraband without making physical contact
with Appellee's anatomy. And while we understand that a visual examination
is certainly uncomfortable, we posit that physical contact would have been
even more upsetting. Thus, we find that the visual inspection, while inherently
traumatic, involved minimal trauma and pain to Appellee .
iii. Knowledge Required to Perform the Search
Finally, we turn to the knowledge required to perform this type of search,
and conclude that, unlike the medical procedure addressed in Schmerber, a
visual strip search of an arrestee does not necessitate specialized training. We
believe, the only knowledge required to conduct a strip search is supplied by
common sense and decency as demonstrated by the officers here when they
performed the search within four walls and by excluding everyone but the
officers involved.
Here, the officers did not disrobe Appellee for public viewing and neither
did they conduct the search outside in an open field . And although there is
testimony that the door was partially opened, the officer testified that no one
else was in the line of sight . The knowledge to do the strip search in private
was exhibited by the officers in this case. Thus, we find that the officers
possessed an adequate know-how to perform this type of search .
After considering the factors evaluated in Schmerber, we conclude that
the search was conducted in an appropriate manner .
c. The Justification for Initiating the Search
Having found that the search was supported by probable cause, we find
adequate justification for this search . It goes without saying that had the
officer not been made immediately aware of the contraband by the plain feel of
his hand during a Terry pat down, and continued to conduct a strip search of
Appellee in the field, such conduct would shock the conscience of this Court
and would not be tolerated. But we do not have that here .
Here, the search was performed after the officers : recognized that
Appellee might be subject to a bench warrant; witnessed him conceal
something near his groin; faced a potentially dangerous, ongoing fracas ; heard
an individual scream "It's in his crotch!"; knew that he sometimes carried a
weapon ; and became immediately aware that Appellee was harboring drugs on
his person. We find that because of the need for officer and public safety and
the need to preserve evidence, there existed ample justification to conduct this
search .
d. The Place in Which it is Conducted
Finally, we turn to the last Bell factor and consider the location in which
the police conducted the search . Of all the factors considered thus far, we find
this factor most troubling, yet ultimately conclude that it was reasonable under
the circumstances. See Polk v. Montgomery Co, 782 F.2d 1196, 1201-02 (4th
Cir .1986) (whether the strip search was conducted in private is especially
relevant in determining whether a strip search is reasonable under the
circumstances) . We recognize that strip searches are necessary for a plethora
of reasons, and we understand that in order to preserve the safety of officers, of
the public and of evidence, they must sometimes be employed . But we also
take this opportunity, as did the United States Supreme Court, to issue a
caveat : these interests "hardly justify disrobing an arrestee on the street ."
Illinois v. Lafayette, 462 U .S . 640, 645 (1983) . Indeed some courts have
suppressed evidence where police officers, in an attempt to recover evidence,
have exposed an arrestee's most private anatomy to the public . However, most
of those cases involved searches conducted outside of four walls . See Amaechia
v. West, 237 F.3d 356, 361-62 (4th Cir. 2001) (holding a visual strip and visual
cavity search unreasonable when done beside a police car) ; Hill v. Bogans, 735
F.2d 391, 394 (10th Cir. 1984) (finding unconstitutional "routine strip searches
in a public area of persons detained for minor traffic offenses") ; United States v.
Ford, 232 F. Supp . 2d 625 (E.D . Va. 2002) (holding search unreasonable when
conducted on the highway in broad day light) . We do not have that here .
Here, while it is true that Appellee was strip searched in a room with a
partially opened door it is also true that no one was in the line of sight during
the search and that only the officers were in the room. And while the Court of
Appeals was concerned with the possibility that someone might be able to peer
into the room where the search was taking place, the evidence is to the
contrary.l0 We refuse to suppress evidence based upon the unsupported
assertion that the search was conducted in a manner potentially exposing
Appellate to prospective onlookers. Where a search is conducted unnecessarily
exposing an arrestee's naked body to the public, we will suppress absent the
most extraordinary and bizarre circumstances-but conjecture without
evidence will not be considered .
Ultimately, because Appellee was strip searched within four walls and
because he was not exposed to anyone not involved with the search, we
conclude that the place in which the search was conducted was reasonable.
Therefore, after considering the Bell-factors, we conclude that the need
for the search outweighed the privacy considerations in this case.
III . Conclusion
For the foregoing reasons, the Court of Appeals is reversed and the
Fayette Circuit Court's order denying Appellee's motion to suppress is
reinstated .
All sitting. All concur.
to Appellee did not testify at trial, only officer Schwartz who swore that no one was
in "line of sight ."
COUNSEL FOR APPELLANT:
Jack Conway
Attorney General of Kentuc
Gregory C. Fuchs
Assistant Attorney General
Office of Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204
COUNSEL FOR APPELLEE :
Linda Roberts Horsman
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, KY 40601